In our latest installment of Ask the Expert, brought to you by the team of industry experts at EHS Hero®, we look at a recent question from a subscriber asking about medical marijuana in the workplace. See what the experts had to say.
Q: I am looking for guidance on the topic of medical marijuana use in the workplace. Maine has recently passed a bill legalizing the use of marijuana. I would appreciate any information regarding this topic.
While legalization of marijuana generally has not required employers to accommodate its use among their workforce, that may be changing. Some states do have disability anti-discrimination statutes that include protections for medical marijuana users, and some have pre-employment drug testing bans already in place or soon going into effect.
Under OSHA’s General Duty Clause, employers must maintain safe workplaces. OSHA specifically includes impairment by drugs (legal, prescribed, or illegal) as a potentially avoidable workplace hazard. So any employee who is impaired must be prevented from injuring himself, co-workers, or members of the public, especially with a motor vehicle. And, employers must identify all safety-sensitive jobs in the workplace—such as those working with moving machine parts or driving company vehicles—and barring medical marijuana users from those jobs, even if they show no signs of impairment and never use the drug during work hours.
Furthermore, the Omnibus Transportation Employee Testing Act requires drug and alcohol testing of safety-sensitive transportation employees in aviation, trucking, railroads, mass transit, pipelines, and other transportation industries.
A clearly written drug and alcohol policy is a key step for employers looking to protect their interests and avoid liability. Questions to address include:
- Is there a ban on preemployment testing in your area?
- Are there restrictions on random drug testing?
- Are there any antidiscrimination laws for medical marijuana cardholders in your locality?
- Are there relevant privacy protections in your state?
- What actions can you legally take if an employee tests positive?
There are several resources on BLR that address the subject as well:
Federal & state section: Alcohol & Drugs: https://safety.blr.com/analysis/employee-health/alcohol-and-drugs-testing/Maine/
Marijuana in the workplace: https://safety.blr.com/workplace-safety-reference-materials/white-papers/employee-health/alcohol-and-drugs-testing/Marijuana-in-the-workplace-An-inside-look-at-legal/
7-minute safety trainer: Prescription Drugs and Medical Marijuana: https://safety.blr.com/training/7-minute-safety-trainer/employee-health/alcohol-and-drugs-testing/Prescription-Drugs-and-Medical-Marijuana-7-Minute-/
Drug and Alcohol Testing: What Supervisors Need to Know: https://safety.blr.com/training/workplace-safety-training-powerpoints/employee-health/alcohol-and-drugs-testing/Drug-and-Alcohol-Testing-What-Supervisors-Need-to-/